Whitsell v. . Mebane
Supreme Court of North Carolina
Debt, tried before Tourgee, at Fall Term 1869 of Alamaatce Court. The plaintiff declared upon a bond executed by the defendant, as surety for one John A. Mebane.
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Debt, tried before Tourgee, at Fall Term 1869 of Alamaatce Court. The plaintiff declared upon a bond executed by the defendant, as surety for one John A. Mebane. It was shown that the defendant had refused to sign it, unless it were placed in the hands of one Barnhart, to be held by him until the principal should execute a mortgage upon a certain tract of land, in order to indemnify the defendant ; after which, and then only, it was to be delivered to the obligee, the intestate. This was done, and the defendant instructed Barnhart not to deliver tlie bond until he should notify him. Defendant…
1Opinion of the CourtDick, J.
The only question presented in this case, is, whether the bond declared on was properly delivered.
To determine this question, the intention of the obligor must be ascertained from the facts attending the transaction. The defendant signed the bond as surety, and placed it in the hands of Barnhart, to be held until certain conditions precedent were performed, and then to be delivered to the obligee. At the time of this agreement, and in the presence ■of the plaintiffs intestate (the obligee,) the defendant expressly instructed Barnhart u not to deliver said paper writing to plaintiff’s…
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